Two Different Offences: Criminal Code vs. Highway Traffic Act
Ontario law creates two separate offences for driving while your licence is suspended or prohibited. The distinction between them determines whether you face a criminal record or a provincial conviction — and the difference in consequences is substantial.
Section 320.18 of the Criminal Code makes it a criminal offence to operate a motor vehicle while prohibited from doing so by a court order. This section applies when a judge has imposed a driving prohibition as part of a criminal sentence — most commonly after a conviction for impaired driving, dangerous driving, or another Criminal Code driving offence.
Section 53 of the Highway Traffic Act makes it a provincial offence to drive while your licence is under administrative suspension. This covers suspensions for unpaid fines, demerit point accumulations, medical suspensions, and administrative licence suspensions imposed by the Ministry of Transportation.
Understanding which statute applies to your situation is the first step in building a defence. The penalties, procedures, and available outcomes differ significantly between the two.
Criminal Code: Driving While Prohibited (s. 320.18)
Driving while prohibited under section 320.18 of the Criminal Code is a hybrid offence. The Crown can proceed by indictment or summary conviction. The penalties reflect Parliament’s view that violating a court-ordered driving ban is a serious matter.
Penalties
- Summary conviction: Maximum two years less a day imprisonment and/or a fine
- Indictment: Maximum 10 years imprisonment
- Mandatory minimum fine: $5,000 for a first offence
- Mandatory imprisonment: 30 days for a second offence; 120 days for a third or subsequent offence
- Additional driving prohibition: The court will impose a further prohibition on top of the existing one
A conviction under section 320.18 results in a criminal record. This has cascading effects on employment, professional licensing, travel, and immigration status.
Highway Traffic Act: Driving While Under Suspension (s. 53)
Driving while under suspension under section 53 of the Highway Traffic Act is a provincial offence. It does not result in a criminal record. However, the penalties are still significant.
Penalties
- Fine: $1,000 to $5,000
- Imprisonment: Up to six months
- Additional suspension: Up to two years on top of the existing suspension
- Vehicle impoundment: The vehicle may be impounded for up to 180 days
Although this is a provincial offence, courts take it seriously. Repeat offenders or those whose suspension was itself imposed for a serious reason can expect consequences at the upper end of these ranges.
Side-by-Side: Criminal Code vs. Highway Traffic Act
The table below compares the two offences across the consequences that matter most to accused persons.
| Consequence | Criminal Code s. 320.18 | HTA s. 53 |
|---|---|---|
| Criminal record | Yes | No |
| Maximum imprisonment | 10 years (indictable) | 6 months |
| Minimum fine | $5,000 (1st offence) | $1,000 |
| Mandatory jail (2nd offence) | 30 days | No mandatory minimum |
| Vehicle impoundment | Discretionary | Up to 180 days |
| Additional driving ban | Yes — extended prohibition | Up to 2 years additional |
| US travel impact | Inadmissible (criminal conviction) | No direct effect |
| Applies when | Court-ordered prohibition | Administrative suspension |
The DUI Connection
The most common scenario for a Criminal Code driving while prohibited charge is a person who has been convicted of impaired driving and then drives during their court-ordered prohibition period. This creates a compounding problem: you now face a second criminal charge on top of an existing DUI record.
Courts treat this combination severely. A person convicted of DUI who then drives while prohibited has demonstrated — in the court’s view — a pattern of disregarding both the law and the authority of the court. Sentences in this context tend toward the higher end of the available range.
The interaction with the ignition interlock program is also important. If you are eligible for the interlock program and choose to drive without an interlock-equipped vehicle instead, you are driving while prohibited. The interlock program exists specifically to allow convicted impaired drivers to regain driving privileges in a controlled way — bypassing it is treated as a new criminal offence.
Common Reasons for Administrative Suspensions
Not every suspension triggers a Criminal Code offence. The following types of suspensions fall under the Highway Traffic Act, meaning that driving during these suspensions is a provincial offence under section 53:
- Unpaid fines: Your licence is suspended until all outstanding fines are paid. Many people are unaware their licence has been suspended for this reason.
- Demerit points: Accumulating 15 or more demerit points results in a 30-day licence suspension.
- Medical suspension: The Ministry of Transportation may suspend your licence if a medical condition affects your ability to drive safely.
- Administrative Driver’s Licence Suspension (ADLS): A 90-day roadside suspension for failing or refusing a breath test, imposed by the police at the time of the stop — before any criminal charges are resolved.
- Remedial measures: Failure to complete required programs like Back on Track can result in a continued suspension.
The critical question in every case is whether the suspension was administrative (HTA s. 53) or court-ordered (Criminal Code s. 320.18). Your lawyer must examine the source of the suspension to determine which offence applies.
Defences to Driving While Suspended or Prohibited
Several defences are available depending on the circumstances of the charge.
- Lack of knowledge. If you were genuinely unaware that your licence was suspended — for example, the Ministry of Transportation never sent a suspension notice, or the notice was sent to the wrong address — this can be a complete defence. The Crown must prove that you knew or ought to have known your licence was suspended or that a prohibition was in effect.
- Necessity. In rare circumstances, driving while suspended may be excused if you had no reasonable alternative and drove to avoid a serious and imminent threat to life or safety. This defence is narrowly applied by the courts and requires genuinely extraordinary circumstances.
- Identity. The Crown must prove beyond a reasonable doubt that you were the person driving the vehicle. If identification is based solely on vehicle registration — without direct observation of the driver — there may be a viable identity defence.
- Charter violations. If the police stop that led to the charge was unlawful — for example, a random stop without any articulable cause, or a stop based on racial profiling — evidence obtained during the stop may be excluded under section 24(2) of the Charter.
- Invalid prohibition or suspension. If the underlying driving prohibition was not properly imposed — for example, the sentencing judge did not comply with the statutory requirements, or the administrative suspension was issued in error — the charge may not stand.
What Happens After a Conviction
A conviction for driving while suspended or prohibited does not just result in the immediate sentence. It has longer-term consequences that affect your ability to get back on the road.
For a Criminal Code conviction, the court will impose an additional driving prohibition on top of the one you violated. This extends the total time you are banned from driving. The conviction appears on your criminal record and can affect employment, professional licensing, and US travel — a criminal conviction for any offence can make you inadmissible to the United States.
For an HTA conviction, the additional licence suspension of up to two years is imposed on top of the existing suspension. Your insurance premiums will increase substantially, and many standard insurers will refuse to cover you. The conviction appears on your Ontario driving abstract.
In both cases, a pattern of driving while suspended can lead to progressively harsher sentences. Courts view repeat offences as evidence of a deliberate refusal to comply with driving bans, and sentences escalate accordingly.
Reinstatement: Getting Your Licence Back
After your suspension or prohibition period ends, reinstatement is not automatic. You will need to satisfy several requirements:
- Pay all outstanding fines and reinstatement fees to the Ministry of Transportation
- Complete any required programs (such as Back on Track for DUI-related suspensions)
- Install an ignition interlock device if required by your sentence or as a condition of early reinstatement
- Satisfy any medical clearance requirements if applicable
- Obtain high-risk automobile insurance (which may be difficult and expensive after a driving while suspended conviction)
The reinstatement process can take weeks or months, and driving before your licence is fully reinstated — even after the suspension period has technically ended — is still an offence.
How a Lawyer Can Help
Driving while suspended charges — particularly under the Criminal Code — carry consequences serious enough to warrant legal representation. A defence lawyer can:
- Determine whether the charge falls under the Criminal Code or the HTA
- Investigate whether you had actual notice of the suspension or prohibition
- Challenge the legality of the traffic stop and any Charter violations
- Negotiate with the Crown for a withdrawal or resolution to a lesser charge
- Present mitigating circumstances at sentencing if a conviction is unavoidable
If you have been charged with driving while suspended or driving while prohibited in Ontario, contact RH Criminal Defence to discuss your options. Early legal advice can make a significant difference in how the charge is resolved.